The NSW Ombudsman has identified potential systemic issues in the public sector’s use of both contingent labour and other contractors to effectively fill employment roles.
Ombudsman, Paul Miller said the issues were identified during an investigation which resulted in findings of wrong conduct by the Department of Planning and Environment in its hiring of a contractor to ‘act in’ a vacant senior executive role for around 11 months.
In his Report, Investigation into the procurement of an acting executive director at the former NSW Department of Planning and Environment, Mr Miller said the potential systemic issues related especially to senior management roles which would normally be filled following a competitive merit-based recruitment under the provisions of the Government Sector Employment Act 2013 (GSE Act).
“One of those concerns stems from the fact that contractors and contingent workers (who are not employees of the Agency itself) generally cannot be delegated functions under the GSE Act or the Government Sector Finance Act 2018 (GSF Act),” Mr Miller said.
“This means they legally cannot make decisions that would be a routine part of many senior roles, including certain decisions about staffing or spending,” he said.
“Despite that inability to wield delegated power, the Public Service Commission’s (PSC) Contingent Workforce Management Guidelines suggest that GSE Act roles can be assigned to contingent labour hire workers, as long as the risk of the individual being misrepresented as an actual employee of the Agency is minimised.”
Mr Miller said the PSC Guidelines did not provide guidance on whether it was appropriate for contingent labour hire workers to use the title associated with a GSE Act role – “that is, whether they should be held out (internally or externally) as occupying or ‘acting in’ a particular employment role”.
The Ombudsman said allowing this to happen would heighten the risk of a misunderstanding as to whether the labour hire worker was performing all functions of the role, including functions they could not legally exercise.
“It would also seem to increase the risk that those contingent workers might purport to exercise such functions,” he said.
“This risk appears greatest for those who may be held out as acting in executive roles, which would ordinarily have significant staff and financial management responsibilities.”
Mr Miller said he had discussed the matter with the Public Service Commissioner who agreed to consider the issues raised in the Report and whether any further action was required.
The Ombudsman’s 34-page Report can be accessed at this PS News link.
